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Charting & Documentation During the Coronavirus COVID-19 Pandemic

Charting & Documentation During the Coronavirus COVID-19 Pandemic

The world’s memory of this virus will be different when lawsuits are filed two years from now and juries try the cases two to three years after that. The acuteness of the issues, the confusion, the limited resources and the changing daily directives will not be remembered in any meaningful detail. Accordingly, the Risk Management dogma that has always emphasized charting is more important now than usual. If the standard of care is judged as care “under the same or similar circumstances”, and those circumstances are “delivering care in a COVID-19 pandemic”, how will we show those circumstances in a 2025 jury trial?  We recommend vigilant documentation.

In consideration of Alabama’s sample ventilator allocation guidance, and exemplary language from other states, Starnes, Davis, Florie, LLP. recommends the below language be charted in circumstances where a resource may be diverted away from a patient who could be in need.  The sample language specifically applies to decisions in triaging a patient and any initial treatment decisions regarding a specific (limited) resource.

Sample Language:

In making a clinical judgment regarding the allocation of [resource] during the [COVID-19 pandemic / public health emergency], I have assessed the patient’s history, symptoms, and condition and considered the limited availability of resources and clinical factors associated with the allocation of limited resources.  My clinical judgment, under the totality of the circumstances, is that [clinical decision] is appropriate for this patient as an alternative medical intervention.

We also recommend against language or specific explanations to patients as follows:

·        Language / an explanation to a patient or a patient’s family explicitly referencing financial issues or considerations.

·        Language / an explanation to a patient or patient’s family focusing the considerations on the resource itself as opposed to the specific patient.

·        Language / an explanation to a patient or patient’s family specifically documenting the condition of other patients or the specific condition of other patients receiving resources.

·        Language / an explanation to a patient or a patient’s family specifically quantifying any patient’s likelihood of successful treatment – that being the patient receiving the resource and the patient not receiving the resource.

·        Language / an explanation to a patient or a patient’s family specifically comparing patients or outcomes.

·        Language / an explanation to a patient or a patient’s family specifically referencing medical ethics.  Medical ethics underpins all clinical decisions and does not need to be specifically included in the chart.

This information is not intended to provide legal advice, and no legal or business decision should be based on its content. No representation is made that the quality of legal services to be performed is greater than the quality of legal services performed by other lawyers.  Read full disclaimer.

Posted in: Legal Watch, Members

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Families First Coronavirus Response Act (HR6201) Summary

Families First Coronavirus Response Act (HR6201) Summary

Last night President Trump signed what is being called the second coronavirus stimulus bill. It provides for free coronavirus screening, $1 billion in additional unemployment insurance funding to all states, a bump in Medicaid FMAP, $1 billion in food aid, and two provisions to provide paid sick leave to employees. 

 Emergency Paid Sick Leave

This provision gives 80 hours or 2 weeks of paid sick leave to individuals who work for employers with fewer than 500 employees. This applies to all employees, both full time and part-time with part-time receiving leave equal to the average number of hours worked. There is also no tenure of employment requirement. This leave is available to workers who are:

  1. In self-isolation because of a coronavirus diagnosis
  2. Obtaining a diagnosis or care due to coronavirus symptoms
  3. Complying with an order to self-isolate because of exposure to someone with coronavirus
  4. Caring for a family member with a diagnosis or symptoms
  5. Caring for a child without access to daycare or school because of closure.

If the employee falls under the first 3 categories, they are entitled to full pay, but if work is missed to care for a family member or a child without access to school or daycare only two-thirds of pay is due. An employer cannot force an employee to use existing, traditional sick leave first.

Emergency Family and Medical Leave Act (EFMLA)

If after the first 2 weeks, the employee needs additional days, the EFMLA will be triggered. The existing FMLA provides 12 weeks of unpaid leave, but this emergency measure would provide that up to 10 weeks of that emergency eave that would be paid. The first two weeks under EFMLA would remain unpaid and during the following 10 weeks employees would be entitled to two-thirds of their pay.

Like the emergency paid sick leave provision, EFMLA would be for those diagnosed with coronavirus, caring for a family member diagnosed, and caring for a child without access to daycare or school. Unlike the paid sick leave provision, employees must have worked for 30 days and there is a hardship exemption for small business with under 50 employees. Under the hardship exemption, the US Department of Labor is given the authority to develop regulations to exempt a small business if EFMLA threatens the viability of the business. 

The United States Secretary of Labor has the authority to issue regulations for good cause to (1) exclude certain health care providers and emergency responders from the definition of eligible employee; and to exempt small businesses with fewer than 50 employees when the imposition would jeopardize the viability of the business. 

Tax Credit for Employers 

Employers would be eligible for a refundable tax credit of 100 percent of qualified sick leave wages paid and family leave wages paid against their employer-side payroll tax liability. Employers can claim a quarterly tax credit against payroll taxes for payments associated with these 2 provisions up to the total payroll taxes in that quarter.

Medicaid

The bill temporarily increases the Medicaid FMAP in all states by 6.2% beginning in the calendar quarter of the emergency and ending the quarter it is declared over. Coronavirus testing must also be provided with no cost sharing. Those eligible will only lose coverage if they leave the state.

The bill also creates a new Medicaid eligibility category for the uninsured. Uninsured individuals would only be eligible to receive diagnostic testing for coronavirus, no treatment, but that testing would be done at no cost and reimbursed at 100% FMAP.

Unemployment Insurance

As states expand the criteria for unemployment to include coronavirus reasons, the US Labor Department reported 281,000 new claims for unemployment insurance last week, a 70,000 jump over the previous week. The bill gives states $1 billion for unemployment insurance nationwide that will provide relief to those who are facing coronavirus-related job loss.  The unemployment aid would be broken in two separate payment structures. The first 50% of the grant would be sent to states for State Unemployment Agency staffing, technology, and other administrative costs so long as the states comply with three provisions in the bill. (1) Require employers to provide notification to the potential UI eligibility to laid off workers; (2) ensure that workers can apply for benefits in person, by phone, or online; two of the three must be available; (3) the state must notify applicants when an application is received and being processed and if the application cannot be processed, what information is needed to successfully process the claim.  Currently, the State of Alabama would meet the current requirements to receive their portion of the first $500 million package. The other $500 million would be reserved for an emergency grant package for those states that may have seen at least a 10% increase in unemployment. There is also flexibility built into the unemployment provision with the goal of making it easier for workers to access unemployment benefits by waiving waiting weeks and work search requirements.

States could potentially be eligible for Extended Benefits (EB) for unemployment compensation programs when the unemployment rate surpasses certain thresholds to trigger EB programs.  The first extended benefits trigger could allow for an additional 13 weeks of unemployment benefits after a claimant exhausts current state benefits (14 weeks of state UI benefits).

Food Assistance

The bill adds $500 million to provide access to nutritious foods to low-income pregnant women or mothers with young children who lose their jobs or are laid off due to the COVID-19 emergency through the Special Supplemental Nutrition Program for Women Infants and Children (WIC). There is also $400 million to assist local food banks to meet increased demand for low-income Americans during the emergency. The work requirement for the supplemental nutrition assistance program (SNAP) is also suspended. There are also provisions to provide funding and flexibility in the free and reduced lunch program if a school is closed for 5 consecutive days and for at home delivery of meals to the elderly. 

Posted in: Medicaid, Medicare, Members

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Telehealth in Alabama during COVID-19 Public Health Emergency (PHE)

Telehealth in Alabama during COVID-19 Public Health Emergency (PHE)

prepared by Kim Huey, MJ, CHC, CPC, CCS-P, PCS, CPCO, COC

March 19, 2020

The most important thing to remember is that payers have differing definitions of what they consider telehealth.  I recommend checking with the applicable insurer for the most up-to-date information affecting requirements for coding and billing of telehealth services.  A few things to ask about: 

  • What are the effective dates?  Most insurers are limiting this exemption to a specific period of time. 
  • What services are covered? 
  • How are those to be billed? 
  • Do we use telehealth codes or office visit codes? 
  • What place of service? 
  • What modifiers are necessary?
  • For fee-for-service, traditional Medicare

The information below pertains to the major payers in Alabama as of 3/18/2020 –

Blue Cross Blue Shield of Alabama is allowing providers to bill for phone call treatment of existing patients under the established patient office visit codes from 3/16/2020 – 4/16/2020.  They are allowing codes up to 99213 with place of service code 02 (zero two) for telehealth. No modifier is required.  Many providers are concerned about reaching that level of service when no examination can be performed.  Remember that established patient office visits require only two of the three key components – history, examination, medical decision-making.  If the physician documents an expanded problem-focused history and low complexity medical decision-making, 99213 will be supported.  This must be the physician speaking with the patient, not the office staff.

Alabama Medicaid normally requires separate credentialing for providers performing telehealth; however, that restriction has been waived 3/16/2020 – 4/16/2020 (dates of service).   Medical providers may bill established-patient evaluation and management codes 99211, 99212 and 99213 for telephone consultations.   Psychologists and behavioral health professionals should bill 90832, 90834, 90837, 90846, 90847 and H2011. A dental provider should bill D0140.  Place of service code 02 (zero two) for telehealth and modifier CR are required.  Verbal consent must be obtained and documented in the medical record.  These visits will count against the patient’s office visit limit of 14 visits per year.

United Health Care is waiving originating site restrictions for their commercial, Medicare Advantage, and Medicaid plans.  The patient may be at home or at another location.  All the other requirements for telehealth must be met – real-time audio and video communication system required. These include the place of service 02 and the GQ (asynchronous telecommunications system) or GT (interactive audio and video telecommunication system) modifier.  This waiver is only in effect until April 30, 2020.

Medicare

Fee-For-Service Medicare DOES NOT allow telephone calls to be billed as telehealth.  The PHE waiver provides three specific exceptions to the existing telehealth regulations:

  1. the patient can be in their home or other location – they do not have to be in a healthcare facility in a HPSA.
  2. the audio-video link can be something as simple as Skype or FaceTime or Facebook Messenger video calls – but it has to be a real-time audio AND video one-to-one connection, not something public-facing
  3. costshare can be waived – it is not automatically, but it can be waived at the providers’ discretion.

CMS also stated that they will not audit to verify that there is an established patient relationship.  Services are limited to the list of telehealth services at:  https://www.cms.gov/Medicare/Medicare-General-Information/Telehealth/Telehealth-Codes

This does include office visits, consultations, Transitional Care Management, and Annual Wellness Visits.  Place of service is 02 (zero two) for telehealth.  No modifier is necessary unless you are billing from a CAH Method II hospital (GT) or you are treating the patient for an acute stroke (G0).  There is also a modifier for a telemedicine demonstration project in Alaska or Hawaii (GQ).

NOTE: Although CMS stated that no modifier is necessary, Palmetto GBA is requesting modifier CR be appended for tracking purposes.

For services that have a site of service differential, payment will be made at the facility rate.

CMS has not specified an end date for these exceptions, just that they will be allowed as long as the Public Health Emergency declaration is in effect.

If there is not a real-time audio-video connection, then you are limited to one of the following:

Virtual Check-In

  • G2012 – Brief communication technology-based service, e.g. virtual check-in, by a physician or other qualified health care professional who can report evaluation and management services, provided to an established patient, not originating from a related E/M service provided within the previous 7 days nor leading to an E/M service or procedure within the next 24 hours or soonest available appointment; 5-10 minutes of medical discussion
  • G2010 – Remote evaluation of recorded video and/or images submitted by an established patient (e.g., store and forward), including interpretation with follow-up with the patient within 24 business hours, not originating from a related E/M service provided within the previous 7 days nor leading to an E/M service or procedure within the next 24 hours or soonest available appointment

Please note the following restrictions:

  • Established patients only (same definition as for other E&M services)
  • Verbal consent required and must be documented in the patient’s medical record
  • No service-specific documentation requirements but medical necessity must be documented.
  • May only be billed by those providers who can perform and bill E&M services

To clarify – G2012 has been in effect since 1/1/2019 – it is supposed to be for an established patient, but CMS has said they will not audit for that requirement during this time.  It does not require the video link, so it is really the only option for phone calls.  It cannot be related to an office visit within the past 7 days, as that would be considered part of the work of the already-billed office visit.  And if the doctor tells the patient to come in at the first available appointment, it can’t be billed as it would be considered the pre-work for the upcoming office visit.  As it specifies 5-10 minutes of medical discussion, time should be documented.

For email or portal communication, we also have these codes, new for 2020:

  • #99421 – Online digital evaluation and management service, for an established patient, for up to 7 days, cumulative time during the 7 days; 5-10 minutes
  • #99422 – …11-20 minutes
  • #99423 – … 21 or more minutes

Please note the following restrictions:

  • Patient-initiated digital communications requiring a clinical decision that would otherwise be made during an office visit
  • Physician/Qualified Healthcare Professional (QHP) time only
  • Not billable if patient seen in person or through telehealth within 7 day period

For All Payers –

There have been questions on how to perform a visit by phone or audio-video without being able to examine the patient.  First of all, established patient visits require two of the three key components:  history, examination, and medical decision-making.  A visit can be billed based on history and medical decision-making.  However, some examination can be done without laying hands on the patient.  Observation can be done through video, and sometimes just through audio.  A physician can observe skin tone, abnormal movements, respiratory effort and many other exam elements without being able to necessarily touch the patient.  A complete Psychiatric exam can be accomplished through talking with the patient.

For example, the patient calls in with complaint of dysuria. The physician documents the complaint (Duration, Timing) and further asks questions about fever, nausea and vomiting (Constitutional and Gastrointestinal Review of Systems).  He also reviews the patient’s Past Medical History and Allergies.   Based on her previous history, he suspects that the patient has a urinary tract infection and orders an antibiotic.

A patient with asthma calls in with an exacerbation – the physician can actually hear the patient wheezing over the telephone – that would be documented as a problem-focused examination.

The key point is that the physician himself must have the conversation with the patient on the phone or through the audio-video link.  This may be something that a nurse may have handled previously, but now it must be performed by the physician to be billable. 

Posted in: Blue Cross Blue Shield of Alabama, CMS, Medicaid, Medicare, Members, Technology

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President’s Statement on Coronavirus COVID-19

President’s Statement on Coronavirus COVID-19

We now have thirty-two confirmed cases of the new coronavirus infection in Alabama.  We have all seen how this new virus has spread around the world from its beginning in China just a few months ago.  The World Health Organization has now classified this as a pandemic.  However, please remember that compared to the flu, the number of cases in Alabama, in this country and worldwide are still quite small.  I am hopeful that folks will not panic and let common sense dictate their response to this situation.  Our state and federal governments, the Alabama Department of Public Health, the Medical Association and others are all working to implement reasonable responses to this evolving situation.  Everyone’s health and safety is our primary concern.

Some important things to remember:

  1.  Over 90% of the cases of COVID-19 have been mild and resemble the common cold.
  2. Half of the people worldwide that have contracted this disease have now completely recovered.
  3. Folks most at risk for this disease include the elderly and especially those with underlying medical conditions such as COPD, diabetes, heart disease or cancer.
  4. Not everyone needs to be tested for the coronavirus, those needing to be tested need to meet certain criteria that suggest they may be at risk for this disease.

How can you best protect yourself and avoid becoming ill from the coronavirus:

  1. If you are sick, stay home.  If you have a cough and fever, stay home.
  2. If you are sick, call your family physician or primary care provider and let them help you determine if you need to be tested or seen. 
  3. During any kind of pandemic, you should avoid going to the Emergency Room or the Doctors’ Office for routine things that could be handled after the pandemic passes.  Remember: that is where the sick folks are and that is who you need to avoid.
  4. Wash your hands frequently with soap and water.  Hand sanitizers should only be used when soap and water are not available.
  5. Cover your cough, cough into your elbow.
  6. Keep your hands away from your face.
  7. Avoid large crowds and crowded spaces.  Social distancing, which means staying at least 6 feet from the nearest person, is the best way to avoid coming in contact with this and other infectious diseases.

We need to all work together to meet the challenge of this new coronavirus disease.  Avoiding panic and using good common sense measures can help us all stay safe and healthy.

John S. Meigs, MD, FAAFP

President, Medical Association of the State of Alabama

Posted in: Leadership, Members, Official Statement

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Shift in Patient’s Right to Access Medical Records

Shift in Patient’s Right to Access Medical Records

By: Kelli C. Fleming, Burr & Forman

The Office of Civil Rights (“OCR”), the government agency tasked with HIPAA compliance and enforcement, recently announced a change impacting a patient’s right to access his/her medical records—a change which is, given OCR’s history, surprisingly favorable to providers. 

One of the long-standing premises of HIPAA has been a patient’s right to access his/her medical records. For years, the HIPAA regulations have limited the fees that providers can charge patients when they request a copy of their medical records to a reasonable, cost-based fee (regardless of the permitted state law fees). HITECH expanded this right a few years ago by allowing patients to exercise their right to access medical records, but designate a third-party to whom the records should be sent (e.g., the patient’s attorney). These requests from patients to send their records to a designated third-party are oftentimes referred to in the industry as “HITECH” requests. 

Subsequent OCR guidance stated that the historical limitation on fees that applied when a patient exercised his/her right to access medical records would also apply to the situation where a patient requested that his/her records be sent to a designated third-party pursuant to a “HITECH” request. As a result, providers were limited in what they could charge third-parties, such as attorneys, seeking access to medical records by way of a “HITECH” request from a patient, as opposed to by way of a HIPAA authorization. 

However, based on a recent court order, such limitation on fees no longer applies to “HITECH” requests. As a result of the recent court decision, OCR has clarified that “the fee limitation set forth at 45 C.F.R. § 164.524(c)(4) will apply only to an individual’s request for access to their own records, and does not apply to an individual’s request to transmit records to a third party.” Thus, as a result of this recent court decision, providers, and their business associates, are no longer bound by the HIPAA-imposed limitation on fees when a patient requests that a copy of his/her medical records be sent to a designated third party (e.g., attorney). For these “HITECH” requests, providers can now charge fees acceptable under state law, without applying the HIPAA fee limitations. These state law fees are oftentimes higher than the HIPAA fees. Further, the court decision clarified that such “HITECH” requests are limited to requests for an electronic health record with respect to PHI maintained in an electronic format.

OCR has been clear that the  HIPAA limitation on fees, however, will continue to apply to patient requests to access their own medical records when the records are delivered directly to the patient. Nonetheless, this shift in guidance is favorable to providers and much welcomed by the healthcare industry.

Kelli Fleming is a Partner at Burr & Forman LLP practicing exclusively in the firm’s healthcare industry group.

Posted in: Legal Watch, Members

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Appropriate Use Criteria for Advanced Diagnostic Imaging

Appropriate Use Criteria for Advanced Diagnostic Imaging

Contributed by: Gregg Everett, Gilpin Givhan

The Protecting Access to Medicare Act (PAMA) was passed in 2014.  PAMA required the Centers for Medicare and Medicaid Services (CMS) to establish a program that promotes “Appropriate Use Criteria” (AUC) for advanced diagnostic imaging. AUC’s are evidence-based criteria that assist professionals who order and furnish certain imaging services to make the most appropriate treatment decisions for specific clinical conditions. Once the AUC program is fully implemented (2021), payment will only be made for an advanced diagnostic imaging service if the Medicare claim indicates that the ordering professional consulted with a qualified Clinical Decision Support Mechanism (CDSM) about whether the ordered service meets an applicable AUC.  A CDSM is an interactive electronic tool for use by clinicians that communicates AUC information and assists in making appropriate treatment decisions during a patient’s workup.  An ordering professional is a physician or other licensed professional who orders an imaging service.  The settings covered include hospital outpatient departments (which includes the hospital’s ER), ambulatory surgery centers, physicians’ offices and IDTF’s.  

Advanced diagnostic imaging services include MRI’s, CT scans, PET scans and nuclear medicine. The CDSM must be reported on claims for payment using G-codes, modifiers and, eventually, the ordering physician’s NPI. For the period July 1, 2019, through December 31, 2019, only voluntary reporting was required.  Beginning January 1, 2020, an educational and operations testing period will be implemented, which is expected to run through December 31, 2020. For now, CMS will still pay a claim, whether or not the claim correctly includes AUC information. Eventually, CMS must develop outlier criteria (which will require some ordering professionals to obtain prior authorizations) and will not pay those claims that do not have AUC information, unless a specific exception is met. The exceptions include emergency services provided to individuals with emergency medical conditions (EMTALA definition), inpatient care where payment is made under Part A Medicare, or significant hardships, which includes insufficient internet access and EHR or CDSM vendor issues.  

Qualified CDSM’s (only national professional medical specialty societies or other organizations of providers who predominantly provide direct patient care may develop CDSM’s) must be approved by CMS and must meet other criteria, such as providing a certification or other documentation at the time of the order that a qualified CDSM was consulted, and whether or not the service ordered met the requirements of the specific referenced AUC. The regulations also list certain “priority clinical areas” that will be monitored to identify outlier ordering professionals as follows:  coronary artery disease (suspected or diagnosed), suspected pulmonary embolisms, headache (traumatic and non-traumatic), hip pain, low back pain, shoulder pain (including suspected rotator cuff injury), cancer of the lung (primary or metastasis, and suspected or diagnosed), and cervical and back pain. Ordering physicians and settings for these imaging services should begin the process of including AUC’s on Medicare claims in January 2020.

For more information see:

  1. “Protecting Access to Medicare Act of 2014,” Section 216, (Public Law 113-93), 42 U.S.C. Section 1395m(p) and (q).
  2. 42 CFR Section 414.94 – “Appropriate Use Criteria for Advanced Imaging Services.
  3. “Appropriate Use Criteria (AUC) for Advanced Diagnostic Imaging – Educational and Operations Testing Period—Claims Processing Requirements”; MLN Matters Number MM11268 Revised December 6, 2019.

Posted in: CMS, Legal Watch, Medicare, Members

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Striking Your Best Deal: Things to Look at on the Front End of Negotiating an EHR Vendor Contract

Striking Your Best Deal: Things to Look at on the Front End of Negotiating an EHR Vendor Contract

Article Contributed by Christopher L. Richard, Gilpin Givhan, PC

Backdrop

Imagine you’re selling your practice . . . or leaving your practice . . . or retiring. You want to continue to have access to the patient records you’ve maintained through the practice over the years, and in fact, you have an obligation to do so. Under Rule 540-X-9-.10(1) of the joint guidelines of the Alabama State Board of Medical Examiners and Medical Licensure Commission, physicians are required to retain medical records “for such period as may be necessary to treat the patient and for additional time as may be required for medical-legal purposes.”[1]In addition, you must provide patients notice and a reasonable opportunity to request their records or request that they be transferred to another practice. It used to be you would maintain physical copies of these records in your practice office, a secure storage area, or by some other means. However, your patient records are now stored in an electronic health record (“EHR”) system maintained by a third-party vendor. Your third party vendor is planning to charge you a regular monthly service fee for the entire duration of time you have to keep the records. The alternative is an exorbitant one-time fee for you to obtain a copy of the digital patient records maintained in the EHR system. Neither option is particularly good, but the scenario provides an important opportunity to examine key contractual provisions you and/or your counsel should pay attention to when negotiating EHR and other vendor contracts.

I Have the Need . . . for Legalese

Contracts, especially vendor contracts, can be filled with overly-complicated, legalese-ridden language that tends to earn attorneys their fair share of grief. However, a good portion of this language is born out of experience and necessity. For one, attorneys tend to loathe repeating (or allowing) the same mistakes more than once (“Fool me once, shame on you; fool me twice, shame on me,” as the saying goes). Unfortunately, attorneys cannot anticipate every possible scenario that might unfold, but we often attempt to ensure that contractual provisions at least provide clarity in situations where past ambiguities have turned into disputes.

Secondly, attorneys do their best to memorialize what are often extremely complicated arrangements between their clients. Complicated structures frequently require complicated descriptions. Otherwise, a contract may be lacking in meaningful standards and may be no more useful that the “handshake” agreement that started the contract negotiation process.

With the (perhaps) optimistic notion that attorneys craft documents out of necessity according to the principles above, consider the following contractual provisions that are worth the extra attention in the contract negotiation process.

Important Contract Provisions

Ownership of Records; Rights to Use.  It should go without saying that you and your patients are the owners of your patient records, regardless of whether they are stored in, or on, your vendor’s software and/or hardware. Be wary of any contractual language that seems to give ownership rights in your patient records to the EHR vendor. By that same token, consider what rights your EHR vendor reserves to use and/or disclose information stored on their system. When intense scrutiny of tech company privacy practices is layered on top of HIPAA and increasingly restrictive state, federal, and international privacy laws, it’s worth an extra look to ensure you’re not allowing your EHR vendor to take any actions that would impact your obligations under applicable privacy laws.

Indemnification/Hold Harmless/Limitation of Liability.  Experience tends to show that contracting parties will listen and respond to reasonable concerns, especially when they are trying to earn your business. The same principles apply to the remedies provisions of vendor contracts. For instance, the initial contract presented may require you to “indemnify, defend, and hold harmless” the vendor against a host of liabilities that may be incurred by you or the vendor. It is almost always a reasonable request to have the indemnification language be mirrored between the parties. In other words, if you are required to indemnify the vendor for your negligence, gross negligence, or willful misconduct, they should be willing to indemnify you for their similar conduct.

In addition, the contract may limit the amount of damages recoverable to the total amount of payments you make for the vendor’s services under the contract, or the number of payments in a given time period (e.g., one year or the term of the contract). These limitations are not uncommon, and they are not necessarily unreasonable. However, it’s not the kind of limitation you want to discover after you’ve encountered some significant financial harm and are expecting the other party to cover all the costs.  Similarly, it would be untenable to accept unlimited potential liability to your EHR vendor when they are putting fairly extensive limits on their liability to you.

Termination Provisions.   Now, back to where we started: what happens when you are attempting to terminate your practice or a relationship with an EHR vendor? As an initial matter, it’s worthwhile to consider your options to terminate the contract before the term is over. All too often, I’ve seen clients stuck in long-term contracts with little or no option to terminate. Obviously this is a matter of economics for the vendor. They have up-front investment costs that have to be recouped over the life of the contract, which hopefully (for them) is a long term. However, consider options to terminate the contract for “good cause.” It’s also worthwhile to consider including an illustrative list of items that constitute “good cause,” in an effort to avoid arguing about what “good cause” means when you elect to terminate the contract. In addition, consider a no-fault termination provision, which may be acceptable to both parties if there is a reasonable notice period before the contract can be terminated.

Lastly, consider what your options are to preserve the records or get them out of the EHR system upon termination of the contract. In the example above, you may be caught between a rock (continued EHR service fees for the required record retention period) and a hard place (a costly one-time fee to obtain a copy of the records). Again, these deal points can (and should) be negotiated on the front end of the arrangement with the EHR vendor, especially if you foresee a change in your practice (e.g., retirement) in the near future. An acceptable solution likely looks different for each individual physician or practice, and their respective vendors, and could vary based on the timing (early vs. end of contract term) and reasons (retiring vs. transferring to new vendor) for terminating services. Concepts like these should be considered to address this issue and other contractual issues on the front end of the agreement, rather than when the relationship has soured or ended.

Conclusion

The contracting process can be tedious, frustrating, and at times can seem unnecessary, especially if both parties “seem to be on the same page.” However, there are great benefits to a well-conceived contractual relationship. These may include robust and meaningful standards of performance. They may also include reasonable provisions and limitations on indemnification, liability, and damages, or even a plan for what happens when the relationship is terminated. At any rate, they should be tailored to meet the parties’ needs and should be a help, rather than a hindrance. They simply require some attention from the parties on the front end of the contract.Please note that the information provided in this article does not, and is not intended to, constitute legal advice; instead, all information, content, and materials contained herein are for general informational purposes only.  Readers are encouraged to contact their attorney to obtain advice with respect to contract negotiations or any other particular legal matter.


[1] Although there is no specific retention period, the Board of Medical Examiners suggests keeping patient records for at least 10 years or otherwise consulting with the malpractice liability carrier to determine an appropriate record retention period.

Posted in: Legal Watch, Management, Members

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Top 4 Dos and Don’ts For Audits and Investigations

Top 4 Dos and Don’ts For Audits and Investigations

In the spirit of college football season and the inevitable argument about which four college football teams are in the college football playoffs, this article addresses the undisputed top 4 dos and don’ts that physicians should follow during an audit or investigation.  I have represented countless medical practices and individual physicians with a variety of federal payor audits, false claims investigations and DEA investigations.  The following top 4 dos and don’ts are the top issues I see frequently repeated, oftentimes to the detriment of the provider under investigation.

# 4 – Keep an Exact Copy of Everything Produced or Viewed Most of the time I am not retained until after the practice has turned over the requested documents and, in some cases, has also turned over non-requested documents. The usual response by the practice, when asked why it did not keep a copy of what was released, is something along the lines of “we did nothing wrong” or “we know what we turned over and can make a copy if needed.”  However, when I ask for the documents produced, the practice oftentimes cannot replicate what was produced. This puts the practice at a competitive disadvantage from the start. It also makes citing to a particular document extremely difficult when legal counsel does not know (1) if a particular document was actually produced, or (2) if it was produced, where in the mountain of records the document is located. Defending the practice’s conduct or fighting a recoupment becomes challenging without a copy of the documents. Thus, the practice should go ahead and make an exact copy of what is produced and maintain the copy until the practice is reasonably sure nothing will come from the audit or investigation. It is also recommended that the practice hire legal counsel before producing records, so as to ensure that only responsive documents are produced.

# 3 – Review All of the Medical Records Before Producing.  While this seems like a no brainer, I cannot state the number of times a medical practice has printed what it believes to be the entire medical record only to learn when receiving a recoupment demand or allegation of false claims that the entire medical record was not produced.  Another common issue in this age of electronic medical records (“EMR”) is that the printed record looks substantially different than the electronic record.  Some EMR systems will print a paper copy differently if the “print” function is used versus the “print screen” function.  I have experienced numerous occasions when the paper copy looks suspicious or incomplete, particularly the patient’s history or prescription records, because of the way the EMR prints the record.  On a related note, if the practice wishes to use a consultant to conduct a simulated audit, it is important to make sure that the consultant either has access to the EMR or that the printed paper records are complete and identical to the electronic records.

# 2 – Maintain Signature Logs of Alabama Medicaid Patients.  The Alabama Medicaid Agency requires that providers maintain evidence that the patient actually attended the appointment.  It does this by requiring providers to keep a signature on file to prove the patient’s attendance at each appointment. I have represented quite a few physicians and practices in Medicaid audits, and I do not recall an audit that did not request copies of the patients’ signatures.  However, the signature requirement is not well known by Alabama providers, as many of my clients are unaware of the requirement and fail to keep a copy of the signatures. While there are other ways to prove that a patient attended the visit, it is very simple to satisfy the signature requirement and avoid having to gather other forms of proof–simply use the removable signature logs and paste the patient’s signature into the record for that particular visit.

#1 Never, Ever, Ever Voluntarily Surrender A License/Permit/Participation Without First Obtaining Advice of Counsel.  Without question, the undisputed defending champion and current #1 is never ever voluntarily surrender a license, permit or participation in a payor’s program without first obtaining advice of counsel. I have heard on multiple occasions that a particular investigator says something along the lines of the following to a licensee “Things will go much easier if you voluntarily surrender your license.”  I have never in my experience seen where things have gone easier for the physician when he/she has voluntarily surrendered his/her license. However, it does is make things easier for the licensing body, so the statement above is true as phrased. The voluntary surrender substantially compromises the physician’s ability to defend his/her case, as the physician has lost any leverage he/she may have had – the agency already has what it wants – the physician’s license.  Most licensing agencies have due process requirements that must be followed before it can revoke, suspend, or take any adverse action on a license.  One of the most important due process requirements is giving the physician the right to a hearing where the physician can be represented by counsel and present evidence. The hearing process affords the physician the ability to test the agency’s evidence and interpretation of its regulations, which are oftentimes flawed.  The hearing process also gives the physician the ability to reach a compromised resolution of the matter, oftentimes allowing the physician to keep his/her license.  By voluntarily surrendering a license, the physician loses such rights and ability.


Jim Hoover practices with Burr & Forman LLP and works exclusively within the firm’s Health Care Industry Group. Jim primarily handles healthcare litigation and compliance matters.

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Staff Retention Leads to a Successful Practice

Staff Retention Leads to a Successful Practice

I visit many practices throughout the year performing medical practice assessments.  One of the first items to review is staffing levels, length of service and each staff member’s role.  The administrator is a key component to engaging the staff.  Increasing the level of staff engagement can raise productivity 20% and reduce the probability of a staff member leaving by 87%.

Administrators who hire an employee for a specific position which is detailed in a job description makes the first step to communicating effectively.  Proper preparation for onboarding is essential to adding value to the employee/employer relationship.  The first day should begin with orientation, discussion of the handbook, employment paperwork and the introduction of the training plan.  More than 5% of employees leave a new job due to a disastrous first day.  It is important to equip a new employee with the tools to learn the job, such as a mentor and a checklist of key tasks they should be able to perform within a 90-day probationary period.

Once an employee is past the probationary period, goals should be set for development.  Ongoing communication and training are essential to engaging the employee and creating buy-in within the organization.

Annual evaluations are useful in rewarding good performance, and also setting goals for development.  An evaluation should not be the first time an employee learns of a performance problem.  Problems should be addressed at regular intervals with specific directions for improvement.  The evaluation should only report the need for continued improvement or acknowledgment of success.

During an office review, I sometimes find the administrator has simply turned new staff members over to the most knowledgeable employee. If the seasoned employee was not trained effectively, how successful could he or she be at preparing the new employee? The better performing practices have an effective training program, regular staff meetings and incentive programs to engage the staff.  I recently assisted a practice that had lost several key employees; they were paralyzed.  They could not even generate financial reports to realize the extent of their problems.  Your staff is your most valuable asset and losing them can be costly. It can cost 150% to replace a valuable employee considering loss of production and training time.

Cross-training staff to perform multiple task is a good way to assure you can get through a short-term absence or the timeline to replace an employee. Documented best practice workflows should be obtained from your practice management vendor and EHR vendor to ensure you can train appropriately. We are assisting practices in changing their employee bonus structure to reward performance and buy-in. Take care of your best asset, the staff you have trained and who know your practice. Warren Averett can assist you with all your recruiting and staff management projects.

MBI Transition Ends This Month: WILL YOU BE PAID ON JANUARY 1?

The 21 month transition period will end on December 31; use Medicare Beneficiary identifiers (MBIs) now.

  • You are currently submitting 86% of claims with MBIs.
  • Get MBIs from your patients and through the MAC portals (sign up) now and after the transition period. You can also find the MBI on the remittance advice.
  • Protect your patients from identity theft – use MBIs.

Starting January 1, if you do not use the MBI (regardless of the date of service) for Medicare transactions:

  • We will reject your claims with a few exceptions
  • We will reject all eligibility transactions

See the MLN Matters Article for more information on getting and using MBIs.


Article contributed by Tammie Lunceford, Healthcare and Dental Consultant, Warren Averett Healthcare Consulting Group. Warren Averett is an official Gold Partner with the Medical Association.

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Better Together: Physician-Lead, Team-Based Care

Better Together: Physician-Lead, Team-Based Care

Working as a team is unquestionably the best and most efficient way to maximize the skill sets of a specific group of people. In medicine and depending on the particular needs of the practice, a team-based approach can include various combinations of physicians, nurses, physician assistants, pharmacists, social workers, case managers and other health care professionals. The unique strengths and perspectives of each team member are an asset when providing the safest, best possible care to patients. The best place for physicians to learn how to work as a team is while they are still in training.

“So in a residency world, the team in a hospital setting is going to be the attending physician, usually one or two upper-level residents, and then usually two first-year residents. And in this setting, we have a couple of medical students. That’s our team,” explained Tom Kincer, M.D., Director for the Montgomery Family Medicine Residency Program. “The way that team works in the hospital setting is built on varying levels of responsibility so that as students and residents gain more knowledge and more skills, they’re given more independence yet have oversight of upper levels. So the first-year residents have oversight by the upper-level residents, and the upper-level residents have oversight by the faculty physicians.”

According to Dr. Kincer, the Montgomery Family Medicine Residency Program’s success has been built on this hierarchy of educational independence that has worked for many years and allows for a “symbiotic relationship” between a  mix of disciplines in health care that is patient-centric but always led by a physician. For Dr. Kincer, the ultimate goal of a physician-led team-based model of care will always be to affect change in the health of the population. To do this, there are numerous hurdles to overcome.

“So the team-based model for population health is the best model for patient care,” Dr. Kincer said. “When it comes to providing that one individual patient the best care possible because they can have a physician, right? They could have the physician, lead nurse practitioner, or the pharmacist, or the social worker, or the occupational therapist. All of that is part of the bigger team, but the problem comes in a fee-for-service model with MACRA. How do we pay for all that? Physicians can’t afford to pay for everything out of their pockets, because there’s no direct reimbursement. Once we tackle that, I don’t think we can move forward with a true team-lead model. But it doesn’t exist unless you’re in a health care facility that’s willing to sponsor this team-based model. There are too many competing forces against it.”

While it may appear that the deck is stacked against the physician-led team-based model, as Dr. Kincer noted, if there is a health care facility willing to sponsor it, the advantages to the community are overwhelming.

Perhaps the most frustrating stumbling block in modern medicine today is access to care. For patients who do not have a physician of their own, these patients will use a hospital’s emergency department for all the wrong reasons. Not only does this cause lengthy wait time for patients who need emergency services, but it creates billions in health care treatment costs over time for the hospital. Dr. Kincer’s solution? Spend some money to save not only money but also lives in the long run.

“It’s very difficult for a private practice, primary care physician to have a team-based approach in their office. Other than maybe the physician, a nurse practitioner and their staff. In that model, people need to work to their highest level. So the physician needs to be taking care of patients that require that expert level from the physician, and the nurse practitioner needs to be working at their level and so on to allow the physician to work at their highest level. All this allows the staff to do some of the things the staff needs to do, whether that’s teaching the staff how to apply for drug assistance programs, or to have patients come in and monitor without them actually having to see the nurse practitioner or their physician. If the physician or the nurse practitioner is not seeing the patient, they’re not generating income. There’s got to be enough volume going through the physician and the nurse practitioner over the PA to be able to generate an income to run the office,” Dr. Kincer said.

In an employed physician model, it begins by playing to the institution’s strengths and weaknesses. If the revenue in one department is higher than another, there needs to be a fundamental understanding that the institution can’t work without all departments at the top of their game, so it comes down to budgeting.

“After you find out what the goal of the organization is, you can utilize your resources better for a stronger team-based care model. Certain parts of that model are profit-creating and other parts are patient-oriented that don’t really make the profit, but you can still support the whole team. That’s how most residency programs function as part of the bigger system,” Dr. Kincer said.

The model he created for Baptist Health to use for the Family Medicine Residency Program in Montgomery is called the Care Advisor Program. By identifying a specific group of 250 patients from the tri-county area with chronic illnesses and no insurance who tend to use the emergency department instead of a regular physician to monitor their health issues, the program instituted a team-based model and brought them into their office. Here, patients have access to physicians, nurses, social workers, pharmacy, labs, x-rays, etc., at no cost.

“What we’ve been able to do in our Care Advisor Program in the past 10 years is to save our hospital system about $6 million a year by providing these patients with free medical care. However, it cost us about $4 million a year to take care of this population, but in return, it saves us $6 million a year because prior to the program, it cost the hospital $10 in ER visits to take care of this population that was uninsured. Now with our team-based approach out of the residency program, which is run very efficiently, we’ve taken the average number of ER visits and hospitalizations combined for each patient from 10 to 12 visits a year to less than one per year. The patients get their care in the office, their medications, and follow-up care. We’ve cut expenditures and improved the health of all these patients. The average patients stay in the program for about two years, and their health is improved. Now THAT is population health,” Dr. Kincer said.

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